On Recess Appointments, Justice Was Delayed But Served

The U.S. Supreme Court on Thursday confirmed what many observers both inside and outside the Beltway had long argued: President Obama’s three controversial “recess” appointments to the National Labor Relations Board (NLRB) in January 2012 were, in fact, unconstitutional. This unanimous decision sends a strong message to the executive branch: President Obama cannot violate the Constitution and bypass the Senate’s responsibility to provide advice and consent in order to stock the NLRB with his hand-picked, pro-labor appointees and expect to get away with it. Justice may have been delayed, but on Thursday it was finally served.

The case that eventually found its way to the Supreme Court began in a dispute over a collective-bargaining agreement at the Noel Canning Corporation, a Pepsi distributor in Yakima, Washington. The NLRB ruled against Noel Canning, which then challenged the Board’s decision in court on the grounds that three of its members had been improperly appointed. The invalidation of three members of the five-member NLRB would mean the absence of a quorum, and therefore that the Board could not actually exercise its power.

Noel Canning’s grounds to challenge the NLRB ruling was born from the controversial nature of the President’s appointments of Sharon Block, Terence Flynn and Richard Griffin to the Board on January 4, 2012. At the time, the Senate had not been operating at full capacity since December 17, 2011 and would not return in full until January 23, 2012. They had, however, been holding pro forma sessions – gaveling-in for brief periods – on Tuesdays and Fridays as a maneuver specifically to block recess appointments such as these, which has been employed against both Republican and Democratic presidents.

This is the same process that then-Senator Barack Obama, a former constitutional law professor, understood would be a bar against then-President Bush making recess appointments that Senate Democrats objected to.

President Obama decided to act anyway. He appointed Block, Flynn and Griffin to the Board without Senate approval by invoking the Recess Appointments Clause of the Constitution, which gives the President “power to fill up all vacancies that may happen during the recess of the Senate.” The constitutional question with which the Supreme Court wrestled in the Noel Canning case centered on the exact nature of a Senate recess, and as such, when exactly a president’s appointments would be valid under the Recess Appointments Clause.